Citation Nr: 0726176
Decision Date: 08/22/07 Archive Date: 08/29/07
DOCKET NO. 04-28 430A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUE
Entitlement to service connection for the cause of the
veteran's death.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Patrick J. Costello, Counsel
INTRODUCTION
The veteran served on active duty in the US Navy from
November 1951 to October 1955. The veteran passed away on
October [redacted], 2002; at the time of his death, he was not in
receipt of VA benefits. The appellant is the veteran's
widow.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a June 2003 rating decision of the
Department of Veterans Affairs (VA) Regional Office in
Detroit, Michigan.
FINDINGS OF FACT
1. The VA has fulfilled, to the extent possible, its notice
and duty to assist duties to the appellant by obtaining and
fully developing all relevant evidence necessary for the
equitable disposition of the issue addressed in this
decision.
2. In the early 1950s, the veteran served aboard a United
States Naval warship. Said warship may have contained
asbestos-laden fibers.
3. The veteran died in October 2002; the Certificate of
Death listed the cause of the veteran death to be pleural
mesothelioma. No other conditions, disabilities, diseases,
or disorders were listed as causing or contributing to the
veteran's demise.
4. A private doctor has opined that the veteran's pleural
mesothelioma was caused by or the result of exposure to
asbestos.
CONCLUSION OF LAW
Resolving all reasonable doubt in the appellant's favor, a
disability incurred in or aggravated by service, or which may
be presumed service-connected, did proximately cause or
contribute substantially or materially to the cause of the
veteran's death. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113,
1310, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R.
§§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.312, 3.159 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2006).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)
(West 2002 & Supp. 2006); 38 C.F.R. § 3.159(b) (2006);
Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA
notice must inform the claimant of any information and
evidence not of record (1) that is necessary to substantiate
the claim; (2) that VA will seek to provide; (3) that the
claimant is expected to provide; and (4) must ask the
claimant to provide any evidence in her or his possession
that pertains to the claim in accordance with 38 C.F.R. §
3.159(b)(1). VCAA notice should be provided to a claimant
before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim. Pelegrini v.
Principi, 18 Vet. App. 112 (2004); see also Mayfield v.
Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds,
444 F. 3d 1328 (Fed. Cir. 2006).
The Board finds that the Agency of Original Jurisdiction
(AOJ) has satisfied the duties to notify and assist, as
required by the VCAA. To the extent that there may be any
deficiency of notice or assistance, there is no prejudice to
the appellant in proceeding with this issue given the
favorable nature of the Board's decision with regard to the
issue of entitlement to service connection for the cause of
the veteran's death.
The appellant contends that the veteran was exposed to
asbestos while he was in service. She maintains that as a
result of this exposure, regardless of any post-service
exposure the veteran may have had, the veteran developed
mesothelioma. The veteran died as a result of pleural
mesothelioma and the appellant avers that his death was the
result of his in-service exposure to asbestos. The RO has
denied her claim and she has appealed to the Board for
review.
The veteran served for approximately four years during the
Korean War Era. He served aboard the USS Laws. The
veteran's DD 214 indicates that the veteran's military
occupational specialty was that of a radio operator. The
appellant and friends of the veteran have submitted
statements suggesting that the veteran was only a radio
operator during the last years of his enlistment. Prior to
that, they have asserted that the veteran was working all
over the ship, which caused him to be exposed to asbestos.
The record indicates that after the veteran left the US Navy,
he worked as a pipe fitter. Initially, for four years, he
was a journeyman plumber, and then from 1960 to 1993, he
worked for Chrysler Corporation as a pipe fitter. He then
retired from his position with the car company.
In January 2002, the veteran sought out medical treatment
because he was not feeling well. A 'lump' was discovered and
two months later, surgery was performed to remove the lump
and cancer was diagnosed. Chemotherapy was begun and after
the chemotherapy did not apparently reduce the cancer,
radiation treatments were started. Unfortunately, in October
2002 the veteran passed away. Following the veteran's death,
the appellant submitted a claim for benefits. The Board
notes that from the time the veteran left the US Navy until
he died in 2002, he did not submit any type of a claim for VA
compensation benefits.
The veteran's date of death was October [redacted], 2002. Per the
Certificate of Death, the veteran passed away as a result of
pleural mesothelioma while he was being treated at his local
hospital. No other illnesses, diseases, or disabilities were
listed or suggested. Again the Board notes that at the time
of his death, the veteran was not service-connected for any
disabilities, diseases, or conditions, and he was not
receiving any other benefits such as a pension. At the time
of his death, the veteran did not have a claim before the VA
requesting service connection for any other type of
disability.
The RO reviewed the appellant's claim and the veteran's
service medical records. Subsequently, the RO denied the
appellant's request and the appellant appealed to the Board.
In her notice of disagreement, and then again when she
provided testimony before the RO hearing officer, she claimed
that the veteran's disability had to be related to his
military service. She has reported that while the veteran
was, for many years, a pipe fitter, he may or may not have
been exposed to asbestos in the performance of those duties.
She contends that, regardless of his post-service possible
exposure, it was the veteran's exposure to asbestos while
aboard the USS Laws that ultimately led to his mesothelioma.
To support her claim, the appellant has informed the VA of
the individuals who provided medical care to the veteran.
The VA has obtained those records and they have been included
in the claims folder for review. These records do confirm
the fact that the veteran's cancer treatment was for a period
of less than a year before he passed away. They also
indicate that there was some confusion with respect to an
actual determination as to the type of cancer the veteran
suffered there from. One oncologist, in April 2002, stated
that the veteran had Stage IV spindle-cell carcinoma of the
right lung. A doctor's report from October 2002 did note a
change in the diagnosis to metastiatic mesothelioma.
Regardless of the type of cancer that was diagnosed, the
medical records insinuate that the veteran's cancer was the
result of exposure to asbestos.
The surviving spouse of a veteran who has died of a service-
connected or compensable disability may be entitled to
receive dependency and indemnity compensation. 38 U.S.C.A. §
1310 (West 2002); Wray v. Brown, 7 Vet. App. 488 (1995). The
death of the veteran will be considered as having been due to
a service-connected disability when the evidence establishes
that such disability was either the principal or a
contributory cause of death. 38 C.F.R. § 3.312(a) (2006).
The appellant will be entitled to service connection for the
cause of death if it is shown that the service-connected
disabilities contributed substantially or materially to cause
death; that they combined to cause death; or that they aided
or lent assistance to the production of death. See 38 C.F.R.
§ 3.312(c)(1) (2006). However, service-connected
disabilities of a static nature involving muscular or
skeletal functions and not materially affecting other vital
body functions will not be held to have contributed to death
resulting primarily from some other cause. 38 C.F.R.
§ 3.312(c)(2) (2006).
The standards and criteria for determining whether or not a
disability from which a veteran has died is service-connected
are the same standards and criteria employed for determining
whether a disability is service connected generally, i.e.,
while the veteran is still alive. 38 U.S.C.A. § 1310 (West
2002).
Additionally, in Galvagno v. Derwinski, 3 Vet. App. 118, 119
(1992), the United States Court of Appeals for Veterans
Claims, hereinafter the Court, stated the following:
Further, in cases where the primary cause
of death is so "overwhelming" that
death would have resulted regardless of
the existence of a service-connected
disability, a service-connected condition
may be found to be a contributory cause
of death where that condition has had a
"material influence in accelerating
death" because it "affected a vital
organ and was of itself progressive or
debilitating [in] nature".
Service connection may be established for a current
disability in several ways including on a direct basis. 38
U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303(a), 3.304
(2006). Direct service connection may be established for a
current disability resulting from diseases or injuries which
are clearly present in service or for a disease diagnosed
after discharge from service, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(a), (b),
(d) (2006). Establishing direct service connection for a
disability which has not been clearly shown in service
requires evidence sufficient to show (1) the existence of a
current disability; (2) the existence of a disease or injury
in service; and, (3) a relationship or connection between the
current disability and a disease contracted or an injury
sustained during service. 38 U.S.C.A. § 1110 (West 2002); 38
C.F.R. § 3.303(d) (2006); Cuevas v. Principi, 3 Vet. App.
542, 548 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143
(1992).
With respect to claims based on asbestos exposure, there is
no statute specifically dealing with asbestos and service
connection for asbestos-related diseases, nor has the
Secretary promulgated any specific regulations.
Nevertheless, VA has provided adjudicators with some
guidelines in addressing claims involving asbestos exposure,
as set forth in Veteran's Benefits Administration Manual M21-
1, Part VI, 7.21. The manual states as follows:
(1) Asbestos fiber masses have a tendency
to break easily into tiny dust particles
that can float in the air, stick to
clothes, and may be inhaled or swallowed.
Inhalation of asbestos fibers can produce
fibrosis and tumors. The most common
disease is interstitial pulmonary
fibrosis (asbestosis). Asbestos fibers
may also produce pleural effusions and
fibrosis, pleural plaques, mesotheliomas
of pleura and peritoneum, lung cancer,
and cancers of the gastrointestinal
tract. Cancers of the larynx and pharynx
as well as the urogenital system (except
the prostate) are also associated with
asbestos exposure.
(2) Asbestos, a fibrous form of silicate
mineral of varied chemical composition
and physical configuration, derives from
serpentine and amphibole ore bodies. . .
.
(3) Persons with asbestos exposure have
an increased incidence of bronchial,
lung, pharyngolaryngeal, gastrointestinal
and urogenital cancer. The risk of
developing bronchial cancer is increased
in current cigarette smokers who have had
asbestos exposure. Mesotheliomas are not
associated with cigarette smoking. Lung
cancer associated with asbestos exposure
originates in the lung parenchyma rather
than the bronchi. About 50 percent of
persons with asbestosis eventually
develop lung cancer, about 17 percent
develop mesothelioma, and about 10
percent develop gastrointestinal and
urogenital cancers. All persons with
significant asbestosis develop cor
pulmonale and those who do not die from
cancer often die from heart failure
secondary to cor pulmonale.
The veteran died of pleural mesothelioma. He was more than
likely exposed to asbestos while he was in service and
serving aboard the USS Laws. It is also true that he may
have had some exposure to asbestos after he left the US Navy.
A private physician has said that the veteran's pleural
mesothelioma was due to his exposure to asbestos.
Taking all the evidence into consideration, the Board
concludes that the record contains both positive and negative
evidence in support of the appeal. The record contains a
favorable opinion that the veteran died due to a disease
associated with asbestos exposure. It is the conceded by the
Board that the veteran was exposed to asbestos while serving
aboard the USS Laws. The next implication is that this
exposure led to the development of pleural mesothelioma which
ultimately caused the veteran's death. The private and VA
medical treatment records do not address the appellant's
contentions; they neither prove nor disprove her assertions.
Moreover, those same documents do not confirm or disprove the
determinations previously made by the VA. Thus, the Board
finds that with the resolution of reasonable doubt in the
appellant's favor, it is as likely as not that the veteran's
pleural mesothelioma was due to in-service asbestos exposure.
Therefore, service connection for the cause of the veteran's
death is warranted. 38 C.F.R. §§ 3.102, 3.312 (2006).
ORDER
Entitlement to service connection for the cause of the
veteran's death is granted.
____________________________________________
F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs